Cinneadh
Ms. X and Westmeath County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-140713-D9F1X7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-140713-D9F1X7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in failing to provide access to the requested material under article 7(5) of the AIE regulations on the grounds that no information relevant to the request is held by or for the Council
23 July 2025
1. On 17 May 2023, the appellant requested the following from the Council:
“the projected estimates of the compliance distances around the multi operator site for 4G and 5G in the above referenced planning file ( ie the area at height around the mast that exceeds ICNIRP guidelines for public exposure). It is my understanding that the developer, Towercom will have the calculated details in their pre design safety plan for 4G and 5G.
AIE regulations refer to environmental information held for or by a public authority. I trust that Towercom the site developer is holding this information on behalf of Westmeath CoCo in the interest of public safety. I trust Westmeath CoCo will have requested this information from them in light of public safety concerns/ risk mitigation, expressed to them in previous correspondence.”
2. The appellant did not receive a response from the Council within one month of her request. The request was, therefore, deemed to have been refused. An internal review decision was issued on 25 July 2023. The decision-maker stated that the information requested “does not exist.”
3. The appellant appealed to my Office on 25 July 2023.
4. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Council. In addition, I have had regard to:
a. the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
5. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
6. In accordance with article 12(5) of the AIE Regulations, my role is to review the Council’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Council to make available environmental information to the appellant.
7. The scope of this review is to determine whether the Council was justified in failing to provide access to the requested material under article 7(5) of the AIE regulations on the grounds that no information relevant to the request is held by or for the Council.
8. In her submissions to this Office, dated 18 July and 16 August 2023 respectively, the appellant stated that the projected emissions from mobile phone masts must be calculated “in the regulation and licensing part of the planning process and preplanning design safety.” While this does not fall within the remit of the County Council, she said that she believes this to be a vital component of the entire planning process and cannot exist separately from it. The appellant contended that, as the Council is the authority that granted planning permission for the mast, this information is held by another entity for or on behalf of the Council.
9. The appellant referred to Circular PL 07/12 which was issued under section 28 of the Planning and Development Acts 2000-2012 and updated sections of the Telecommunications Antennae and Support Structures Guidelines (1996). The Circular sets out that planning authorities “do not have competence for health and safety matters in respect of telecommunication infrastructure. These are regulated by other codes….” The appellant argued, therefore, that relevant health and safety information is “held by public authorities in charge of the referenced ‘other codes’ on behalf of the Council as a component part of the planning permission process, albeit a separate and parallel process.” She said that she believes it is reasonable to request Westmeath County Council to seek this information from another party on her behalf. She said that “this is environmental information, held on behalf of citizens of Ireland to ensure health and safety and compliance with guidelines.”
10. She said that the information sought is not publicly available. She requested the information from Towercom, the company who built and own the mast, but she was told it would not be provided. She stated that sharing this information should be an intrinsic part of the planning process and falls within the remit of the Aarhus Convention which promotes public participation in decision-making.
11. The Council stated by letter, dated 1 September 2023, that the information sought by the appellant was not included in the planning application lodged with the Planning Authority and is, consequently, not in the possession of the Council.
12. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. It is the relevant provision to consider where the question arises as to whether the requested environmental information is “held by or for” the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
13. In the present case, the appellant stated that Towercom would have produced the information sought as part of their “pre-design safety plan”. The Council have said that its position is that the information does not exist, or at least is not held by the Council.
14. First of all, I will consider whether reasonable steps have been taken by the Council to locate any relevant information and, if so, whether information is held by the Council and finally, if necessary, whether the information is held by another body for the Council.
15. In the present case, while the appellant has argued that the relevant information should be held by or on behalf of the Council to ensure the safety of residents and it relates to the objective of the Aarhus Convention of promoting public participation in decision-making, my remit is limited to review of the decisions of public authorities under the AIE Regulations. It is not my function to consider whether information ought to be held by or on behalf of a public authority, but whether, as a matter of fact, the information was held by or for the public authority at the relevant time.
16. In relation to searches carried out, the Council stated that planning file 20/7175 on the relevant mobile phone mast was retrieved from the Civic Offices in Athlone; this was done in order to determine whether the information sought by the appellant accompanied the planning application. The file is also available to view publicly at https://www.eplanning.ie/WestmeathCC/AppFileRefDetails/207175/0 . The information sought did not form part of the planning application. The Council stated that as the information sought was not included in the planning application lodged, it is not held by its Planning Department and is not, therefore, held by the Council.
17. Article 3(1) of the AIE Regulations defines "environmental information held by a public authority" as “environmental information in the possession of a public authority that has been produced or received by that authority". I consider that adequate searches have been carried out for the purposes of locating any information held by the Council in accordance with article 7(5) of the AIE Regulations. I consider the conclusion that the Council does not hold any information relevant to the request to be reasonable in light of the searches carried out and the fact that the information sought did not form part of the planning application. This also accords with the fact that the Council, under Circular PL 07/12, does not have competence for health and safety matters relating to mobile phone masts. As the Council does not have competence in this area, I am satisfied that it is not necessary or reasonable to require the Council to carry out any further searches for the information sought.
18. Article 3(1) provides that environmental information held for a public authority “means environmental information that is physically held by a natural or legal person on behalf of that authority.”
19. Both the Aarhus Guide and the preparatory documents for the AIE Directive provide assistance in interpreting the term “on behalf of”. The Aarhus Guide states: “[i]n practice, for their own convenience, public authorities do not always keep physical possession of information that they are entitled to have under their national law. For example, records that the authority has the right to hold may be left on the premises of a regulated facility. This information can be said to be “effectively” held by the public authority.”
20. Similarly, the European Commission's First Proposal for the AIE Directive defined information held for a public authority as meaning “environmental information which is held by a legal or natural person on behalf of a public authority under arrangements made between that authority and that person”. The Proposal explained: “In many cases, experience shows that environmental information which public authorities are entitled to hold on their own account is kept physically on their behalf by other entities. Access to such information may be requested by the public. Public authorities should not be entitled to refuse access to this information simply on grounds that it is not physically in their possession. The proposal ensures that, if such information exists and is kept for the public authority concerned under arrangements with another person or body, it should be made available by the public authority in the normal way.”
21. The proposal was later amended by the European Council to its current wording. The European Council explained that “information held” means “physically held” and deleted the First Proposal's limitative requirement for an arrangement between the holder and an authority. The European Commission noted that by the European Council's amendments the definition was simplified, but the "underlying principle of the definition in the Commission proposal is however ensured".
22. These sources indicate that the purpose of the provision is to ensure that public authorities cannot avoid their obligations under the AIE Directive by simply outsourcing the storage of that information to a third party.
23. There have been a number of decisions of the Commissioner in recent years on the question of whether information is “held for” a public authority, including the cases of OCE-93477- D5V8B6 and OCE-97484-R5V6V1. While I am not bound by previous decisions of the Commissioner, these decisions provide helpful guidance as to how this issue should be considered.
24. In summary, the Commissioner must have regard to the overall factual position in a particular case and come to a conclusion as to whether or not the requested information is “physically held on behalf of” the public authority, taking into account the interpretative assistance provided by the preparatory documents to the AIE Directive. Where there is any doubt, the Commissioner must give an expansive meaning to the term “physically held on behalf of” a public authority, given the duty under article 10(2) of the AIE Regulations and article 4(2) of the AIE Directive to interpret grounds for refusal in a restrictive way.
25. The High Court decision in Bord na Móna PLC v Commissioner for Environmental Information [2023] IEHC 57 clarifies that the factual background to the case must be considered by the Commissioner when determining whether the public authority may be said to have control or ownership over the relevant environmental information held by a third party. This consideration may further include examining the nature of relationship between the public authority and the third party. Finally, the Court concluded that the AIE Regulations and AIE Directive require a broad interpretation of the phrase “on behalf of” to be employed when considering if information is held for a public authority. On that basis, the Court found that a legal person may be said to hold information both for their own purposes whilst concurrently holding the information on behalf of a public authority.
26. The Commissioner has also considered a number of cases dealing with the question of whether requested information is “held for” a public authority by a third party in circumstances where it is alleged that the information relates to that third party’s compliance with, e.g., regulatory obligations or planning permission conditions. Examples of such cases include OCE-97484-R5V6V1, CEI/16/0035, and CEI/13/0001. 33. These decisions provide that although a public authority may have a right or power to compel a third party to provide it with information in particular circumstances, this does not necessarily mean that the third party holds the information on behalf of that public authority. The question as to whether information is “held for” a public authority thus depends in part on the degree of control that the public authority holds over the information in question. It is, therefore, necessary for the Commissioner to examine the factual background to each case and the basis upon which the requested information is created or held before coming to any conclusions on this point.
27. In the present case, I do not consider that the Council has sufficient connection with the information sought such as to warrant the conclusion that the information is held for it by Towercom, or any other entity. As referred to, Circular PL 7/12 specifies:
“Planning authorities should be primarily concerned with the appropriate location and design of telecommunications structures and do not have competence for health and safety matters in respect of telecommunications infrastructure. These are regulated by other codes and such matters should not be additionally regulated by the planning process.”
28. The Circular, therefore, expressly excludes mobile phone mast health and safety matters from the remit of planning authorities. This function is, in fact, reserved to the Commission for Communications Regulation (“Com Reg”) under the Communications Regulation Act 2002 (as amended). Given the Council has no remit in the area to which the information relates, I do not consider that the information sought can be construed as being “physically held by a natural or legal person on behalf of” the Council or that the Council has outsourced the relevant storage obligations to another entity. It has not been demonstrated that the Council has any degree of control or ownership over the information sought.
29. Furthermore, the planning conditions under which permission for the mast was granted do not accord any role for the Council in ensuring compliance with health and safety standards relating to electro-magnetic emissions from the mast. It has not been demonstrated that the Council even has any right of access to the information sought. Similarly, it has not been demonstrated that it has any power to decide whether the information is retained, altered or deleted by Towercom or any another entity. In addition, there is no evidence that the Council is responsible for dealing with queries about the content of the information or that the costs arising from holding the information are borne by the Council.
30. While the appellant has argued that the information forms a separate but related part of the planning process, again, sufficient proximity, control or ownership over the information sought has not been demonstrated such as to warrant a conclusion that the information is held for the Council by another entity, given that the Council has no remit within the relevant area.
31. From all the foregoing, in conclusion, I affirm the Council’s decision on the basis that there is no information held by or for it relevant to the appellant’s request.
32. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Council’s decision in failing to provide access to the requested material under article 7(5) of the AIE regulations on the grounds that no information relevant to the request is held by or for the Council.
33. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information